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Tuesday, January 10, 2017

minor discrepancies, even if noticed, would not affect the prosecution case, if there is a sufficient independent evidence to sustain the conviction

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL Nos. 658-659 OF 2010

Ram Chander & Ors. Appellant(s)

VERSUS

State of Haryana Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) These appeals are filed against the common final judgment and order
dated 12.08.2008 passed by the High Court of Punjab and Haryana at
Chandigarh in Criminal Appeal Nos. 448-DB and 395-DB of 1998 whereby the
Division Bench of the High Court dismissed the appeals filed by the
appellants herein and upheld the judgments/orders of conviction and
sentence rendered by the Trial Court.

2) The case of the prosecution is as under:

One Hari Singh (since dead) was married to Messo (deceased). Out of this
wedlock, the couple was blessed with three daughters, namely, Dholi alias
Krishna, Sumitra and Raj Bala. Raj Bala was aged around 15 years and the
youngest amongst the three daughters. Both Dholi and Sumitra were married
at a place (village) called Kagdana whereas Rajbala was unmarried.

4) Messo and Raj Bala (mother and daughter) were living in one house at
village Arnianwali. Guddi was their next-door neighbour. Messo was in
search of a boy for Raj Bala and had selected one boy from a place called
Manak Dewan for which talks had been going on for the last one month or so
from the date of incident. The engagement ceremony was accordingly fixed
for 22.09.1996 at Arnianwali. Dholi alias Krishna (married daughter of
Messo) had, therefore, come to her mother’s place at Arnianwali on
19.09.1996 to help her mother and sister–Raj Bala for the ceremony.

5) On 20.09.1996, around 3 p.m. Sohan Lal along with his four sons,
namely, Ranbir, Ram Chander, Ram Kumar and Om Parkash, came to the house of
Messo and told her to desist from settling the marriage of Raj Bala with a
boy from Manak Dewan. Sohan Lal said that they could settle it according to
their own choice. Sohan Lal, who was not happy with the marriage proposal,
expressed his total unhappiness and did not want the marriage proposal to
fructify. He then threatened Messo that in case she did not agree to his
proposal then both (Messo and Raj Bala) would not see the sun the next day.
After giving this threat, Sohan Lal along with his sons (appellants herein)
left the place. Dholi and Guddi were present along with Messo and Raj Bala
when Sohan Lal and his four sons had come.

6) Messo fearing with the threat of Sohan Lal asked her daughter Dholi
to go immediately to her brother, Ram Sarup at village Dhigtania which was
around 20 KM away from her house and inform him about happening of such
incident with her. Dholi, accordingly, went there and narrated the incident
to Ram Sarup-her maternal uncle. She then stayed overnight with Ram Sarup.

7) On 21.09.1996, in the early hours, when Dholi and Ram Sarup
accompanied by one Om Prakash-Sarpanch of Village Dhigtania reached to the
house of Messo, they found both, Messo and Raj Bala, missing from the
house. They, therefore, went to the house of Guddi (PW-9), who was living
next to the house of Messo. They noted that Guddi was weeping and was in
the state of shock.

8) When they inquired from her about the whereabouts of Messo and Raj
Bala, Guddi told them that Sohan Lal and his four sons had come in the
night and murdered Messo and Raj Bala, burnt their bodies in house and
carried the remains of the dead bodies and ashes in a cart driven by the
tractor from her house to an unknown place.

9) This led to the registration of FIR bearing No.197 (Ex-PA-1) dated
21.09.1996 by Dholi at Police Station Nathusari Chopta naming Sohan Lal
and his four sons (appellants herein) as accused persons for committing the
murder of her mother-Messo and sister–Raj Bala. The police authorities then
started investigation, visited the spot, recorded the statements of the
witnesses, prepared the spot map, recovered several articles from the spot
and arrested the accused persons. On being interrogated, the accused made
disclosure statements about the manner in which ashes/bones of both the
deceased were disposed of in a nearby Canal known as-Sheranwali Canal and
also disclosed the place where the weapons used in commission of the
offence and tractor with cart were kept. On such disclosure being made, the
police made recoveries of the articles at the instance of the accused.

10) After completion of the investigation, the case was committed to the
Court of Sessions and the accused persons were charged for commission of
the offences punishable under Sections 148, 302 read with Section 149 and
201 of the Indian Penal Code,1860 (for short ‘IPC’).

11) On 07.08.1997, Om Parkash-one of the accused escaped from police
custody from Civil Hospital Sirsa. Proceedings under Sections 82 and 83 of
the Criminal Procedure Code,1973 (for short ‘the Code’) were initiated
against him. He was declared ‘Proclaimed Offender’ and proceedings under
Section 299 of the Code were ordered to be taken up against him. The trial
of other accused, however, proceeded on merits.

12) The prosecution, in support of his case, examined as many as 11
witnesses whereas the defence did not choose to lead any evidence.
Proceedings under Section 313 of the Code were carried out. After
completion of the trial, the Trial Court (Additional Sessions Judge,
Sirsa), vide judgment dated 27.07.1998, convicted Sohan Lal, Ranbir @
Randhir, Ram Chander and Ram Kumar for the offences punishable under
Sections 148, 302/149 and 201/149 IPC and sentenced them to undergo
rigorous imprisonment for a period of one year each under Section 148 IPC.
Ram Chander and Ranbir @ Randhir to undergo imprisonment for life under
Section 302 IPC and to pay a fine of Rs.5000/- each, in default of payment,
further to undergo rigorous imprisonment for a period of one year each.
Sohan Lal and Ram Kumar were sentenced to imprisonment for life under
Section 302/149 IPC and to pay a fine of Rs.5000/- each, in default of
payment of fine, further to undergo rigorous imprisonment for a period of
one year each. All the four accused were sentenced to undergo rigorous
imprisonment for a period of two years each for the offences punishable
under Section 201/149 IPC. All the sentences were ordered to run
concurrently.

13) After arrest of Om Parkash on 22.02.1999, a separate trial was
conducted against him and after its completion, the Trial Court, by a
separate judgment dated 7/8.08.2000, convicted him for the offences
punishable under Sections 148, 302/149 and 201/149 IPC and sentenced him to
undergo rigorous imprisonment for one year under Section 148 IPC
imprisonment for life and fine of Rs.5000/- with default clause under
Section 302/149 IPC and rigorous imprisonment for two years under Section
201/149 IPC. All the substantive sentences were ordered to run
concurrently.

14) Against the judgment of conviction and order of sentence dated
27.07.1998, Sohan Lal, Ram Chander, Ram Kumar and Ranbir @ Randhir filed
Criminal Appeal No. 448-DB of 1998 before the High Court.

15) Against the judgment of conviction and order of sentence dated
7/8.9.2000, Om Parkash filed separate Criminal Appeal No. 395-DB of 2000
before the High Court.

16) The appeals were heard together. By impugned judgment dated
12.08.2008, the High Court dismissed both the appeals. During the pendency
of the appeals before the High Court, Sohan Lal died, therefore, appeal
against him stood abated.

17) Aggrieved by the said judgment, all the accused have filed these
appeals by special leave before this Court questioning the legality and
correctness of their conviction and sentence.

18) Heard Mr. Naresh Kaushik, learned counsel for the appellants
(accused) and Mr. Sanjay Kumar Visen learned counsel for the respondent-
State. We also perused the written submissions submitted by the learned
counsel for the parties.

19) Learned counsel for the appellants (accused) while assailing the
legality and correctness of the impugned order, reiterated the same
submissions which were pressed in service though unsuccessfully by the
appellants before the two courts below resulting in their conviction.

20) In substance, the submissions were that firstly, the appellants were
falsely implicated in the incident inasmuch as none of the appellants were
connected with the commission of the offence in question in any way so also
their complicity in the commission of the offence could not be established
by the prosecution for want of evidence against any of them.

21) The second submission was that neither the motive for commission of
the offence and nor the presence of any of the appellants either jointly
and individually was proved at the time of the commission of the offence by
the prosecution and the evidence adduced by the prosecution is not
sufficient to implicate the appellants for commission of the offence.

22) The third submission was that the two Courts below erred in placing
reliance on the evidence of the so-called eye-witness-Guddi (PW-9) as
according to the learned counsel, her testimony, if scanned properly would
neither inspire confidence and nor will command creditability due to her
close relationship with the deceased family.

23) The fourth submission was that apart from the evidence of Guddi (PW-
9), no independent eye-witness to the incident was examined by the
prosecution, therefore, it is not safe to rely on the uncorroborated
testimony of Guddi (PW-9) for sustaining the appellants’ conviction.

24) The fifth submission was that when the prosecution claimed that on
the strength of disclosure statement of one accused, they recovered “Ashes
and Bones" from the canal, this itself renders the case of the prosecution
wholly unacceptable because ashes could never be recovered from canal.

25) The sixth submission was that it looked highly improbable that no
villager could witness the incident except Guddi(PW-9). This, according to
learned counsel, is sufficient to hold that the prosecution failed to
establish the complicity of the appellants in commission of the crime.

26) The seventh submission was that no expert opinion was obtained to
find out as to whether bones recovered were human bones or animal bones?

27) It is basically these submissions, which were elaborated by the
learned counsel for the appellants with reference to the evidence on
record.

28) In reply, learned counsel for the respondent supported the impugned
order and contended that since both the Courts below, on proper
appreciation of evidence, have held that the appellants were involved in
the commission of the offence in question and committed brutal murder of
two innocent ladies, mother and daughter, and further both the Courts have
given cogent reasons while rejecting their submissions and hence there
arises no reason to interfere in the impugned order.

29) Having heard the learned counsel for the parties and on perusal of
the record of the case, we find no merit in the appeals.

30) At the outset, we may take note of one legal principle consistently
reiterated by this Court since inception that it is not the function of
this Court to re-assess evidence and an argument on a point of fact which
did not prevail with the Courts below cannot avail the appellants in this
Court (see observation of learned Judge – Saiyid Fazl Ali, J. while
speaking for the Bench in the case of Lachhman Singh and others vs State
(AIR 1952 SC 167).

31) Here is a case where the Trial Court and the High Court, on
appreciating the entire oral evidence, recorded categorical concurrent
findings of fact against the appellants (accused) about their complicity in
commission of crime in question which resulted in killing of mother and her
unmarried daughter.

32) Both the Courts below held that firstly, it were the appellants who
had come to the house of Messo (mother) and threatened her that she (Messo)
should not pursue her daughter, Raj Bala's marriage with the boy from Manak
Diwan, otherwise both will not see the sun the next day. Secondly,
noticing that both did not pay any heed to the threat, the appellants came
to Messo’s house in the midnight with a pre-determined mind to eliminate
Messo and Raj Bala. Thirdly, the appellants accomplished their plan by
mercilessly killing Messo and Raj Bala with the use of gandasa when both
were in fast asleep. Fourthly, the appellants first caught hold of Messo
and chopped her head with Gandasa and then did the same to Raj Bala and
then put them on a cot and put mattresses and wood sticks over their bodies
and poured kerosene/diesel and set their bodies to fire. Fifthly, the
appellants then removed the ashes and bones from the place of occurrence in
a tractor and all this was witnessed by Guddi (PW-9) who was living as next
door neighbour of the deceased. Sixthly, Guddi (PW-9) was a reliable eye-
witness whose evidence did not suffer from any infirmities or/and
inconsistencies. Seventhly, the ashes, human bones, plastic bags, Gandasa
used in execution of the offence were recovered from the canal and house at
the instance of the respective appellants on the strength of individual
disclosure statements made during their interrogation. Eighthly, the
defence did not adduce any evidence to demolish the case of the prosecution
and nor statements of the accused made under Section 313 of the Code, in
any manner, could demolish the case of the prosecution on any material
points. Ninthly, the case set up by the prosecution was proved with the
aid of evidence adduced by witnesses, namely, PW-1 to PW-11.

33) As observed supra, the aforementioned nine main findings of the
Sessions Court were affirmed by the High Court after appreciating the oral
evidence. These findings of fact being concurrent in nature are usually
binding on this Court. This Court, being the last Court of appeal, does
not re-visit and re-appreciate the entire oral evidence de novo in its
jurisdiction under Article 136 of the Constitution unless there are strong
and prima facie reasons to do so pointing out therein any apparent legal
and jurisdictional error prejudicing any rights of the accused.

34) However, since this Court granted leave to file appeal to the
appellants against the impugned order of the High Court and hence we
considered it just and proper to have a re-look to the evidence of material
witnesses with a view to find out whether the concurrent findings of the
two Courts below are based on proper appreciation of evidence or any of
these findings call for any interference.

35) As mentioned above, the only eye-witness to the incident in question
is Guddi (PW-9). Both the Courts below found her testimony to be natural,
credible and consistent.

36) Guddi (PW-9) is the real sister of the deceased Messo and she was
living next to the house of Messo. She, in her evidence, narrated in detail
her family tree and their inter se relations including her relation with
the accused family.

37) She stated that Sohan Lal-one of the accused (since dead) was her
husband's (Bhoop Singh’s) real elder brother and the accused are Sohan Lal
and his sons. She stated that Sohan Lal and his sons (appellants) had come
to Messo's house in the afternoon on the date of incident (incident had
occurred in midnight the same day) and held out a threat to her and Raj
Bala that marriage proposal of her daughter with the boy from Manak Diwan
should not be materialized and if it is not cancelled then she and her
daughter will not see the sun the next day. She stated that Sohan Lal gave
this threat to Messo in her presence and in presence of Dholi (PW-8) who
had come to Messo to extend help for engagement ceremony of Raj Bala.

38) She stated that Messo on hearing the threat asked Dholi-her daughter
to go to her maternal uncle (Ram Sarup) - who was the resident of nearby
village and bring him with her, if possible.

39) She stated that Dholi immediately left to the house of Ram Sarup and
on reaching there she told him about the incident. Dholi stayed back
overnight with Ram Sarup.

40) She then stated that during mid-night hours, she heard some noise in
the house of Messo. She, therefore, woke up and came out to find out the
cause of noice. She stated that between her house and the house of Messo,
there is one common wall with sufficient space, which enables anyone to
peep through easily in both the houses.

41) She stated that she came near to the joint wall and through space in
the wall saw that Ram Chander (accused) and Randhir (accused) were holding
Gandasas in their hands whereas Sohan Lal (accused) and Om Prakash
(accused) had caught hold of Masso's hand and legs and Ram Chander
(accused) with his gandasa gave blow on Messo's neck, which completely
severed Messo's neck from her body.

42) She stated that Ram Kumar (accused) then caught hold of Raj Bala who
was on a separate cot and Ranbir (accused) with his gandasa gave blow on
Raj Bala's throat due to which her neck was completely severed from her
body. The accused persons then put both the bodies on one cot along with
their severed heads and put mattresses on the dead bodies. Sohan Lal then
put some wood sticks by the side of the cot and poured two tins of
diesel/kerosene on the cot and set the cot ablaze with matchstick.

43) She stated that Ranbir (accused) then came to her (Guddi‘s) house and
took their tractor and camel cart to Messo's house. He dumped ashes, bones
and other burnt material in the tractor and proceeded with the tractor to
an unknown place. She stated that before leaving, Ram Chander plastered the
place of occurrence with mud and cow-dung and cleaned the place. She stated
that she told about this incident to Bhoop Singh but on hearing it, he ran
away out of fear.

44) She stated that next morning when Ram Sarup, Dholi and Om Prakash-
Sarpanch came, she narrated the entire incident to them, which eventually
led to filing of FIR by Dholi immediately in the concerned nearby Police
Station naming therein the appellants as the culprits of commission of the
offence.

45) Dholi (PW-8) corroborated the evidence of Guddi (PW-9) on material
points such as (1) all the accused visiting Messo's house and giving threat
in her presence to Messo and Raj Bala, (2) Raj Bala's marriage proposal
with a boy from Manik Dewan (3) She having left to her uncle's place at
the request of her mother Messo to inform him about the incident (4) her
family relations with the accused and with other family members and lastly,
what Guddi (PW-9) told her about the entire incident and the manner in
which it was accomplished by the accused on her reaching the house next
day morning with Ram Sarup and Om Prakash.

46) Ram Sarup (PW-10) also corroborated the version of Guddi (PW-9) and
Dholi (PW-8) on all material points. He stated that when he along with
Dholi and Om Prakash went to Guddi, she was weeping and frightened. On
being consoled, she narrated the entire incident (mentioned above) to them.

47) The evidence of the Investigating Officer Hardawari Lal (PW-11) and
Kiran Kumar (PW-7) who was the Scientific Assistant (Forensic Science
Laboratory) proved that the blood stains were found on the walls and earth
and also fresh mud and cow-dung was found on the walls and when it was
removed, blood stains were noticed on the bricks of the wall. Kiran Kumar
(PW-7) also corroborated the existence of joint wall with sufficient space
available in the common wall as stated by Guddi (PW- 9).

48) The evidence of Investigating Officer (PW-11) also proved the
recoveries of articles on the basis of disclosure statements made by
respective appellants (accused). The seized articles were proved and
exhibited.

49) It is with this evidence, the question arises as to whether the two
Courts below were justified in placing reliance on the evidence of Guddi
(PW-9) for resting the appellant's conviction?

50) On scanning the aforementioned evidence, we are of the considered
opinion that both the Courts below were justified in accepting the evidence
of Guddi (PW-9) for resting the appellants’ conviction upon it. We, while
concurring with the reasoning and the conclusion of both the Courts below,
give our reasons infra. In our view, the following facts are proved with
the aid of evidence.

51) First, Guddi (PW-9) was next-door neighbour to the house of both the
deceased where the incident took place. Second, she was closely related to
the deceased family and the family of the accused. Third, she knew the
accused persons and the family members of the deceased very well much prior
to the date of incident being a part of the same families. Fourth, she was
fully aware of the marriage issue of Raj Bala. Fifth, she was present at
the time of threat given by Sohan Lal and his sons (accused) to Messo.
Sixth, she was able to see the incident graphically due to sufficient space
available in the common wall. Seventh, Scientific Assistant, Kiran Kumar
(PW-7) on inspection of the place of occurrence proved that the common wall
has space. He said "there was open space between this wall and the room".
Eighth, it also corroborates with the evidence of Hardawari Lal(PW-11) and
the spot map (EX-PU) of the place of incidence that the wall and the open
space therein did exist; Ninth, Guddi's narration of entire incident is so
graphic that it looks natural. It also shows how confidently she was able
to narrate the role of every accused in commission of the offence. Tenth,
the existence of blood stains on wall and earth coupled with fresh mud and
cow dung put on the walls/earth duly proved by Hardawari Lal, Investigating
Officer(PW-11) and Kiran Kumar (PW-7) corroborates Guddi's statement that
"Ram Chander - one of the accused before leaving the place of occurrence
cleaned the place with mud and cow-dung". Eleventh, it is not possible to
give description of an incident in such graphic manner and that too by a
middle aged illiterate housewife unless she had actually seen such incident
and why should Guddi (PW-9) give evidence against the appellants and
falsely implicate them when there is no evidence to prove their previous
animosity; Twelfth, motive to eliminate the two deceased was proved by
Guddi against the appellants and lastly, nothing could be brought out to
shake her testimony in cross-examination.

52) The submission of learned counsel for the appellants that since Guddi
(PW-9) was in close relation with the deceased persons, she should not be
believed for want of evidence of any independent witness, deserves to be
rejected in the light of the law laid down by this Court in Dalbir Kaur and
Ors. vs. State of Punjab, (1976) 4 SCC 158, and Harbans Kaur and Anr. vs.
State of Haryana, (2005) 9 SCC 195, which lays down the following
proposition:

“There is no proposition in law that relatives are to be treated as
untruthful witnesses. On the contrary, reason has to be shown when a plea
of partiality is raised to show that the witnesses had reason to shield
actual culprit and falsely implicate the accused.”

53) In Namdeo?Vs.?State of Maharashtra, (2007) 14 SCC150, this Court
further held:

“38. ………. it is clear that a close relative cannot be characterised as an
“interested” witness. He is a “natural” witness. His evidence, however,
must be scrutinised carefully. If on such scrutiny, his evidence is found
to be intrinsically reliable, inherently probable and wholly trustworthy,
conviction can be based on the “sole” testimony of such witness. Close
relationship of witness with the deceased or victim is no ground to reject
his evidence. On the contrary, close relative of the deceased would
normally be most reluctant to spare the real culprit and falsely implicate
an innocent one.”

54) We follow and apply this well settled principle of law for rejecting
the submissions of learned counsel for the appellants.

55) In the light of aforementioned twelve reasons, we are of the view
that Guddi (PW-9) was rightly held to be an eye-witness and the two Courts
rightly relied upon her sworn testimony for sustaining the appellants’
conviction.

56) This takes us to the next argument of learned counsel for the
appellants. It was urged that the alleged recovery of articles on the
strength of disclosure statement of the accused and in particular the
"ashes and the bones" from the canal is not possible. We do not agree.

57) In our view, there is no evidence to prove the fact as to whether the
canal from where the recovery of ashes and bones was made had any water
therein or not at the relevant time. We do not find that any question was
put to any witness on this issue and secondly, no independent evidence was
brought on record to prove as to whether the canal was full of water or had
no water therein. In any event, one could not dispute that bones were
recovered from the canal. In the absence of any evidence, which could
otherwise be led in any form, this submission at this stage is, therefore,
not acceptable.

58) This takes us to the next argument of learned counsel for the
appellants. Learned Counsel urged that why the prosecution did not examine
any independent witness from the village other then Guddi (PW-9).

59) We find no merit in this submission for more than one reason. First,
no such argument was advanced before the two courts below. Second, the
incident had taken place during midnight when all the villagers were fast
asleep. Third, no evidence was adduced to prove that near the place of
incident, there were many houses and lastly, had the injury been caused by
the Gun Shot, it would have created some noise in the nearby locality and
attract the attention of the villagers. Such was, however, not the case
because the weapon used in commission of the offence was ‘Gandasa’.

60) In our considered opinion, the disclosure statements made by the
accused during their interrogation on the basis of which the recoveries of
articles were made such as - gandasa, bones, ashes, blood stained bricks
and earth, tractor with cart, two plastic cans smelling diesel oil, which
were duly proved by the Investigating Officer are sufficient to sustain the
conviction when it is examined in the context of oral evidence. Merely
because no expert opinion was obtained to prove as to whether bones
recovered were human or animal bones, in our view, would not weaken the
case of prosecution in the light of overwhelming evidence available on
record to prove the complicity of the appellants.

61) It is the consistent view of this Court that minor discrepancies,
even if noticed, would not affect the prosecution case, if there is a
sufficient independent evidence to sustain the conviction. (See – Vijay @
Chinee vs. State of Madhya Pradesh, (2010) 8 SCC 191, Paras 23 & 23). In
this case, the evidence adduced was found sufficient to sustain the
conviction and we find no good ground to take a different view from the one
taken by the two Courts below and concur with their findings and views by
giving our own reasons mentioned supra.

62) In view of foregoing discussion, the appeals are found to be devoid
of any merit. The appeals thus fail and are accordingly dismissed. In case
if any of the appellants is on bail, his bail bond stands cancelled and he
is directed to be taken into custody forthwith to undergo remaining period
of sentence awarded to him by the Sessions Court.